Court name
Supreme Court of Zimbabwe
Case number
SC 71 of 2002
Civil Appeal 194 of 2001

Kona and Others v Mau and Others (94/01) (SC 71 of 2002, Civil Appeal 194 of 2001) [2002] ZWSC 71 (29 October 2002);

Law report citations
Media neutral citation
[2002] ZWSC 71
















REPORTABLE
(79)


Judgment
No. SC 71/2002


Civil
Appeal No. 194/01








(1)
FAITH FRANCISCA KONA


(2)
ESTATE LATE WILLIAM KONA


(3)
DUNCAN WILLIAM KONA v





(1)
STALIN MAU MAU


(2)
FIRST MERCHANT BANK OF ZIMBABWE


(3)
THE SHERIFF OF ZIMBABWE








SUPREME
COURT OF ZIMBABWE


CHIDYAUSIKU
CJ, ZIYAMBI JA & MALABA JA


HARARE,
JULY 2 & OCTOBER 30, 2002








F
Girach
, for the
appellants





E
T Matinenga
, for the
first respondent





No
appearance for the second respondent





No
appearance for the third respondent









ZIYAMBI JA: The first appellant
and the late William Kona are the registered owners of the property
known as Lot 118 of Greendale
(“the property”). The second
respondent entered into an agreement with Saffron Services (Private)
Limited (“Saffron”),
a company of which the third appellant is a
director, in terms of which Saffron became indebted to the second
respondent in the sum
of $711 176.37. The first appellant and
her late husband, William Kona, bound themselves as sureties and
co-principal debtors
for the payment of the loan to Saffron and
registered a bond over the property as security for the loan. When
Saffron failed to
meet its repayment obligations, the second
respondent issued summons and obtained judgment against the
appellants. Thereafter the
property was sold in execution and
purchased by the first respondent at a public auction in September
1999 for the sum of $1 350 000.00.
The sale was confirmed
by the third respondent, (“the Sheriff”), on 19 November
1999.










On 26 July 2000, the
appellants filed a court application for the setting aside of the
sale in execution in terms of Rule 359
of the Rules of the High
Court.









Rule 359 of the High Court of
Zimbabwe Rules, 1971, states:






“359.
Any person having an interest in the sale may make a court
application to have it set aside on the ground that the sale was
improperly
conducted or the property was sold for an unreasonably low
sum,
or
any other good ground.

Any such person shall give due notice to the sheriff of the
application stating the grounds of his objection to confirmation of
the sale. On the hearing of the application the court may make
such
order as it deems just

(my underlining).









The first appellant, in her
founding affidavit, alleged that William Kona was now deceased; that
she had resided on the property which
was the matrimonial home for
twenty years; that she was duped into signing the suretyship
agreement by her late husband; and that
the house the subject of the
sale in execution was her only asset and that the transfer of the
property to the second respondent
would leave her homeless. She
averred further that the property is worth far more than it was sold
for because there was in existence
a plan for the building thereon of
cluster houses, which plan was before the City of Harare for
approval. Once this plan was approved
the appellant would be able
to raise sufficient money to pay the second respondent in full.









The learned judge in the court a
quo
dismissed the
application, having found there was no substance in any of the
submissions made on behalf of the appellants. With
regard to the
“proposal for repayment”, he found it vague and lacking in
certainty and finality. He found that the equities
favoured the
second respondent who “has waited a great deal for its money and
there is no prospect of its being paid in the immediate
future”.






At the hearing before us, it was
common cause that the plan for the erection of cluster houses on the
property had been approved.
The appellants sought to lead further
evidence on appeal in the form of the permit granted by the City of
Harare, as well as two
offers for the purchase of the property, one
of which was for $10 000 000.00.





FURTHER
EVIDENCE
:









The principles by which this
Court will be guided in deciding an application of this sort were
restated in
Warren-Codrington
v Forsyth Trust (Private) Limited
2000
(2) ZLR (S) 377 at 380G-381B where it was held that:






“When a request is made to lead
further evidence on appeal, this Court will normally, unless the
evidence is simple, straightforward
and uncontested, remit the matter
to the High Court so that the witness can be tested by
cross-examination. But we will only do
so where certain criteria
are satisfied … .





The
criteria are, briefly -






1. Could the evidence not, with
reasonable diligence, have been obtained in time for the trial?






2. Is
the evidence apparently credible?






3. Would it probably have an
important influence on the result of the case, although it need not
be decisive?






4. Have conditions changed since
the trial so that the fresh evidence will prejudice the opposite
party?”.









See also S
v Kuiper
2000 (1) ZLR
113 (S) at 116 A-C;
Farmers’
Co-op Ltd v Borden Syndicate (Pvt) Ltd
1961
R & N 28;
The Civil
Practice of the Supreme Court of South Africa

4 ed at pp 909-912.







Although the second respondent
filed heads of argument, it did not appear before us to argue the
appeal but filed a notice of withdrawal,
the relevant part of which
reads:






“BE
PLEASED TO TAKE NOTICE THAT the second respondent hereby withdraws
its opposition to (the) appellants to appeal (
sic)
after receiving full payment of its debt by the appellants …”.












Mr Matinenga,
who appeared for the first respondent, submitted that the application
to lead further evidence did not satisfy any of the requirements
recognised at law.






I disagree. There is no doubt
that the evidence sought to be led of the approval by the City of
Harare of the subdivision is true.
That much was common cause at
the hearing. Further, it seems to me that this evidence is
materially relevant to the outcome of
the application and it is quite
clear that the evidence could not have been led at the hearing before
the High Court as the application
was still being considered by the
City of Harare at that time.






The only question which now
remains to be resolved is whether the matter must be remitted to the
court
a quo
for a rehearing in the light of this evidence which has now become
available. The evidence is “simple, straightforward and
uncontested”.
It can be considered by this Court without the
necessity for a remittal to the court
a quo
because it is common cause and there is therefore no dispute of fact
which requires determination by a trial court after the hearing
of
oral evidence. The admitted evidence shows that permission has been
granted for the subdivision of the property and the erection
of
cluster houses thereon. It requires no expert evidence to satisfy
this Court that the value of the property will be significantly
enhanced by that fact alone and more so, of course, once the
buildings have been erected thereon.






The position is different with
regard to the offers to purchase the property. These are intended
to prove the value of the property.
The amounts contained therein
are not admitted by the first respondent as being an indication of
the true value of the property
and oral evidence would be necessary
if the application in respect of these documents were to be upheld.
In any event, I do not
consider them to be material to the
determination of the matter. I would therefore disallow the
application insofar as they are
concerned.





THE
MERITS OF THE APPEAL
:







In
Lalla
v Bhura
, 1973 (2) ZLR
280 (GD) at 283 E-F, when referring to Rule 359, DAVIES J (as he
then was) observed:






“The
wording of the rule itself is all-important. The concluding portion
of the rule provides that ‘on the hearing of the application
the
court may make such order as it deems just’ and it seems to me
these words clearly indicate that in considering what is meant
by the
rule, and particularly what is meant by the phrase ‘any other good
ground’ the court can and should properly have regard
to equitable
considerations.”











He
then proceeded further by adopting as an appropriate approach, the
following remarks of SOLOMON J in
Cairns'
Executors v Gaarn
1912
AD 181 at 189-90:






“The
discretion of the Court is a very wide one, and, in my opinion, it is
impossible, and even if it were possible it would be undesirable,
to
lay down any hard and fast line as to the principles upon which its
discretion should be exercised. Every case must be judged
on its
own facts, and these may vary indefinitely. But though we ought
not, in my opinion, to lay down any principles as to the
special
circumstances which will justify the Court in granting relief, we are
on the other hand bound by the rule itself, and we
can only assist a
party ‘upon sufficient cause shown’.”








This
approach was endorsed by this Court in
Bhura
v Lalla
1974 (1) ZLR
31; see also
Morfopoulos
v Zimbabwe Banking Corporation & Ors

1996 (1) ZLR 626 (H).






The discretion of the Court is
therefore a wide one and in the exercise thereof the Court can and
should properly have regard to equitable
considerations.






In arriving at a just decision in
the present case, the fact that the debt has been paid in full is a
material consideration. I
must weigh the disadvantages of setting
aside a properly conducted sale in execution (as set out in
Lalla
v Bhura supra
), namely
that:





“… if
the courts were over ready to set aside sales in execution under rule
359, this might have a profound effect upon the efficacy
of this type
of sale. Would-be purchasers might well be deterred from attending
and bidding if they considered their efforts might
easily be
frustrated by an application under rule 359, and as a general
principle I think it should be accepted that a court will
not readily
interfere in these matters”;








against
the apparent injustice of, in effect, depriving the first

appellant of a home
in circumstances where the debt has been fully paid, the first
appellant has offered to reimburse the first respondent
in respect of
costs incurred in the purchase of the property and the first
respondent is mainly concerned with the interest that
he has lost by
not investing the money spent on purchasing the property.





The
first appellant averred in her founding affidavit that the sum of
$1 350 000.00, for which the property was sold,
was
insufficient to satisfy the judgment debt which, with interest, was,
at the time of the application, in excess of $2 000 000.00.
She averred, although this was not accepted by the learned judge in
the court a quo, that the property, which is situate in
the “prime area of Greendale” and measures over two acres, was
sold for an unreasonably
low sum. Indeed, there was no evidence, on
the papers, to support this averment. She averred further that
various attempts had
been made by her late husband to settle the
indebtedness, including an approach to Beverley Building Society who
were willing to
provide funds with which to liquidate the
indebtedness to the second respondent on the strength of the then
proposed subdivision
of the property and the erection of ten cluster
houses thereon.





In
the court below, the second respondent confirmed these “attempts”
to settle the debt but averred that none of them materialised.

Indeed, when the application came before the court a quo
for hearing, the application for subdivision of the property was
still before the City of Harare awaiting consideration and the
proposals
for payment based thereon were rejected by the second
respondent and dismissed by the court as lacking in certainty. The
evidence
now before us establishes that a permit to erect six cluster
houses on the property was granted on 17 December 2001, some six
months after judgment was handed down by the court a quo.






Although the courts are indeed
reluctant to set aside properly conducted sales in execution for the
reasons stated above, the peculiar
circumstances of this case are
such as to satisfy me that the equities favour the first appellant
and that sufficient cause has been
shown for the setting aside of the
sale in execution.









As regards the costs of this
appeal, the success of the first appellant would normally carry with
it an entitlement to costs. However,
the first respondent ought not
to be penalised for opposing the appeal as the matter turned on the
admission in evidence of the permit
by the City of Harare. I would
therefore make no order as to costs.






Accordingly the appeal is
allowed. The order of the court
a
quo
is set aside and
the following substituted –






“The sale in execution of stand
118 of Greendale situate in the district of Salisbury be and is
hereby set aside”.






There shall be no order as to
costs.


CHIDYAUSIKU
CJ: I agree.


MALABA
JA: I agree.



IEG Musimbe & Partners,
appellants' legal practitioners


Nduna
& Partners
, first
respondent's legal practitioners


Wickwar
& Chitiyo
, second
respondent's legal practitioners